Latest / Dumb Defenses / 22. Spooky Season Finale
Transcript
- Frankie: Hello and welcome back to the Dumb Defenses podcast, where we go around the world and through time to bring you the weirdest legal theories. I'm Frankie. Judah: And I'm Judah, and we just overcame through the power of thought some serious technical issues. Frankie: Yeah, two very un techie things and then my husband came home and told me that I was not in fact resetting the router but the T V box and then I reset the router nearest to me and he said, That's not actual router, that's just the satellite, but the connection is much better now, so whatever I did worked. Judah: Because we got a different satellite. You had a bad satellite. You had an evil satellite. So out Frankie: Ha ha ha. Judah: there your internet was connected to an evil satellite. And now it's connected to Glenda the Good satellite. Frankie: I think the thing sitting on my desk is called a satellite 'cause it's not the main router. Judah: We don't know what it is. Here's the thing Mm mm mm mm. Frankie: I think I think that's what he meant. We are not techie people. We we are able to record this podcast by the grace of fantastic software. Judah: what we were doing was looking up how to try and fix it and trying those things one at a time. Okay, Frankie: Mm. Thank you, Google. Judah: well let's let Frankie: Anyways, so one thing one thing I do wanna say before we get started, this episode is dropping two days before Halloween and five days before election day. So make sure you get your ballots in if you're in a early voting or vote by mail state. Make sure you go on Tuesday if you're at a vote in person state. This election is wildly important for reasons that I'll touch on in part in my fresh hell. Judah: Is your fresh hell doctor Amy Acton? Well let's talk Frankie: No, it not, Judah: about Dr. Amy Acton. Frankie: Okay. Judah: Cause we can 'cause this is a podcast Frankie: Hehehe Judah: and this touches on what I do so as extra mad. Like this attack ad had the opposite intended effect 'cause I don't live anywhere near Ohio. Frankie: I know which one you're talking about. Judah: Yeah, I don't live anywhere near Ohio and I have given Dr. Amy Acton some money. Cause Frankie: Mm. Judah: I thought, here you deserve this. Not my state, but you deserve this. So Dr. Amy Acton is a candidate for a hotly contested gubernatorial seat in Ohio. I Frankie: Mm. Judah: looked her up, she's very, very qualified. Frankie: Mm. Judah: and this is one where this seat could flip to a Democrat. And her opponent, who is I'm just gonna call Sauron, because I don't even like wanna direct people to like his attention. So her opponent, Sauron, the flaming eye of the East. Decided to release an attack ad featuring Dr. Acton's mother calling her a liar. Frankie: Yep. Yep. Judah: But the b worse than that, so her mom was abusive, her mom did Frankie: Her mom fucking abandoned her when she was a kid. Mm-hmm. Judah: abandon her, and her mom's now deceased husband, so Dr. Acton's stepfather, sexually abused Amy when she was a little girl. Amy reported that to the police. This guy was arrested. child welfare intervened and she was placed with her father. Her mom and her stepfather fled to Pennsylvania. There was like an active warrant. He was never convicted because they didn't try to extradite him from Pennsylvania Frankie: Mm-hmm. Judah: where he wound up dying. And she was ultimately like raised in the rest of her childhood by her father, who wasn't an absolute turd. So her mom comes out, she's like, she's a liar and this is a woman who did not believe her daughter, who Frankie: Mm-hmm. Judah: actively worked against her, supported a pedophile. Frankie: This is in child welfare terms, this is a failure to protect. Judah: and emotional abuse. Dr. Acton's brother Frankie: And emotional abuse. Judah: has come forward and said that we have this horrible mother. I can't believe you'd release this. And for like the GOP is all attacking LGBTQ plus community cause like, we're gonna like sexually abuse children and they don't give a rat's ass like you can tell that's a smokescreen because when we have an adult Frankie: Because they haven't released the Epstein files. Judah: well not just that, there's so much. But when we have an adult Adult survivor of childhood sexual abuse, they are completely cosigning and aligning with attacking this person as a liar. Dr. Frankie: Believing the abuser because look who's in charge. Judah: because it's a straight white guy And I've worked on cases where parents actively worked against children who had disclosed sexual abuse, and I can tell you in many circumstances that the non support and the working against the kid was more harmful than the than the abuse itself. Frankie: Absolutely. Judah: This person is a survivor. She went on to be a great success. She had not brought this forward, so we also have this traumatic history that's being drug forward into the public eye in the worst possible way. And I gave her money. I gave her money. And so I really hope that my small amount can go in some way to her winning the gubernatorial race Frankie: Yeah. Judah: in Ohio. Frankie: Yeah, people are seeing that ad and hearing the background of it 'cause she's like, Here's what actually happened, my mom's a piece of shit and Judah: Except for she's saying it like a really graceful, adult way. We're saying this lady's a piece of shit So this lady Frankie: She is she's saying it, yes. We're say yes. Yeah. Judah: is a piece of shit. Frankie: Right. And so she's being very diplomatic and graceful about how she's handling the situation. And instead of it doing what the Republican wanted it to do and painting her as a liar, it's completely backfiring and making him look like a jackass. Cause he is. Judah: And and he came out later, yeah, this is from my campaign 'cause it was un unclear where this is coming from. And Frankie: yeah, he doubled down. He doubled down hard. Judah: it has raised the ire of maybe even people who are ambivalent about this race. Frankie: Mm-hmm. Judah: so anyway, go Doctor Acton go. Frankie: Yes. So my fresh hell is one that I've actually been wanting to do for a couple of weeks. just kinda other things popped up more recently. my sources are a NPR article called Government Spent 10 million dollars on pro-Trump ads after the president said super PAC would fund. and that was by Tamara Keith. there's also a PBS article. I use some of the Citizens for Ethics website information, and also just the source material of the laws I'll be talking about. So this election season, as it is election season, not just election day, Trump has spent nearly $22 million of taxpayer money promoting himself and his policies. This continued after Trump promised to spend private PAC money via Truth Social on October 10th. Because we all know that, everything that is said on Truth Social is truth. Sarcasm. Trump is promoting the ads as public service announcements, quote promotion of our great USA and quote patriotic, despite one of them being an exact duplicate of an ad he ran during the twenty twenty four election. And they just took the paid for by whatever PAC when he was running, replaced with paid for by the US government. The ads have earned bipartisan criticism, and a lawsuit alleges that they are an improper use of federal funds including illegal propaganda. The ads even continued for several hours after U.S. District Judge Jennifer L. Rochon, who was overseeing the lawsuit, issued a temporary restraining order to the tune of hundreds of plays after the restraining order went into place. Department of Homeland Security official Molly Mehringer Claimed that the money came from funds earmarked for, quote, commemorating efforts and events related to border security, end quote. Not generally a thing that gets funded. The Trump administration has said, in addition to simply promoting patriotism, that they can't be campaign ads because he's not running. Despite telling his supporters to vote as if he's on the ballot. Voters are not impressed. A recent Reuters/Ipsos poll showed 86% of voters, including 80% of Republicans, see taxpayer-funded ads such as this inappropriate. Aside from being unpopular, the ads are illegal. The Antideficiency Act prohibits federal agencies from spending in advance or in excess of how funds are allocated. This includes overspending and appropriation, spending money prior to that money being appropriated, accepting volunteer services or otherwise employing personal services unless there's an immediate danger without appropriation, or pledging your spending in excess of an apportionment. the purpose Act essentially says that federal funds can only be used for the purpose that they are appropriated for. Makes sense. It lays out that there's a three-step process to determine if the funding was applied appropriately. First, there must be a quote reasonable and logical relationship between the expenditure and the appropriation. Two, the expenditure must not be otherwise prohibited by law, including prohibitions for appropriation. To publicity or propaganda. And three, the expenditure must not be dual appropriated. So essentially, you can't use the same money twice. Then there's the Consolidated Appropriations Act of 2026, which clearly states: quote, no part of any appropriation contained in this or any other act shall be used directly or indirectly, including by private contractor, for public publicity or propaganda purposes within the United States not heretofore authorized by Congress. End quote. This is reiterated multiple times throughout the act, with only two exceptions. there can be up to twenty-five thousand dollars to carry provisions of the International Security and Development Corporation Act of nineteen eighty, and a separate ability to counter foreign propaganda. Neither of which is happening, and twenty-two million dollars is a bit more than twenty-five thousand dollars. A version of this act was also signed in twenty twenty-two with similar language. Judah: I like that you just have that as it's a bit more. Frankie: It's a bit more. right like so how this works when the government spends money, because the Congress has the power of the purse. So when the government spends money, Congress passes a law saying this to this, this to this, this to this, this to this, right? You can't spend more than what's appropriated for a particular purpose. You can't spend money before it's been appropriated for that purpose. There's all sorts of rules about when and how you can spend the money. Congress did not approve these ads. This is Trump just spending government money for propaganda that has no basis in any need in terms of foreign diplomacy, for like national security, anything like that. It's just him spending money to promote himself, including One of the four ads that he ran was just his campaign ad with a different paid for by slapped on it. Judah: I just wanna also note that currently, as of this week, the president of the Ukraine had double the approval ratings of the President of the United States in the United States. Frankie: Love Zelensky. He's amazing. Judah: He is amazing, love Zelenskyy, but in the United States. Frankie: and another example of how somebody can go from like celebrity to politician and actually do it right. Judah: This is not Frankie: Furthermore. Judah: yeah, this is also not the Ukraine. but I did love that little article. I'll try and find it Frankie: Yeah. Judah: so I can send it to you. Frankie: so my initial thought of hearing all of this was Hatch Act violation. Turns out the Hatch Act does not apply to the president and the vice president. it applies to all public employees and specifically excises the president and the vice president from that statute. But these other statutes are all talking about how we can spend money and only Congress can do that. Judah: Yes. Okay, well I've seen the lawsuits. This is still pending. There's still the restraining order in place and then there was Frankie: Yes. Judah: like a second like clarification with regards to some DHS ads Frankie: Yeah. Judah: recently. Frankie: Well, 'cause they're recruiting and whatnot. Judah: ICE last Christmas produced that AI generated ad of Santa Frankie: Mm-hmm. Judah: detaining people. It's just it's horrifying. Frankie: Yeah. Judah: I mean like that's a good fresh hell. Like the Department of Propaganda is like throwing these things out. Frankie: Well it but also why is DHS Holly Mehringer, she's saying these funds were earmarked for commemorating efforts and events related to border security. Like, we don't need to advertise that. Like that's well, I guess we don't have a press secretary right now, but that's what the press secretary is supposed to do, right? Judah: Did you hear the rumors that President Trump is considering appointing Nicki Minaj as press secretary? Yeah, Frankie: for fuck's sake, really? Judah: and honestly I would love that. I think that would be some of the best humor content. Frankie: But like the press secretary like it's been made a farce of, but the press secretary is actually a really integral part of how the country gets information about what the government is doing, right? Judah: I think you oughta change that verb that you just used. You said is, was, was the the Frankie: Should be. Should be. Judah: press secretary was. Frankie: Should be. Judah: and you know, and we're not anymore. I have no other words on that other than I saw a post that said that somebody made guacamole on the first day of the last press secretary's tenure and it was still good by her last day. and then I when I found out that she had been canned, I texted my mom and I said, Do you think every blonde MAGA woman under the age at thirty five is just gonna get a turn? Frankie: Yeah, I think that's accurate. That's the Judah: Ha ha Frankie: direction that we seem to be going. Judah: Well I do I yeah. Frankie: So just all sorts of Trump violating the law over and over and over. Friendly reminder, he is a convicted felon thirty-seven times over thirty five times over. I think there were two that went away, but. Judah: I don't remember. Well we're gonna go back 'cause I'm first up I think this week is still we both have more lighthearted, but I think I have a more Frankie: Yes. Judah: serious case than you do. I'm I kinda Frankie: Yeah. Judah: so this happened in the kind of early mid two thousands, early twenty tens era. Did you hear about the cannibal cop case? Frankie: It rings a bell, but I'm not recalling the specific facts of it. Judah: Alright, so the case that I am going to be referencing that you can look up is United States v. Valle, V A L L E. let's go back to the allegations. So Gilberto Valle was a police officer. in New York, so New York City Police Department. And other than that, his career like doesn't really have notes. Frankie: Ha ha ha. Judah: as far as I could tell, like there was no violent history, no other crimes, not accused of domestic violence, nothing. But he had a secret life that kind of came into effect. Can you hear the dog barking? Le Frankie: Mm. Judah: leave that part in. That's my lady dog that's jumping in to talk just about the case. She done. Frankie: Ha ha ha. Judah: She knows where I am, So we didn't have any indication that he was like a bad police officer or corrupt, violent, nothing. And this active duty police officer is arrested and charged with conspiracy to commit kidnapping and violations of the Computer Fraud and Abuse Act. And this arises because of a kind of sting or report that he had been conspiring to kidnap and eat over a hundred women on the internet. Now instead of technical difficulties we have canine difficulties. Frankie: I she's part Wymeriner. Judah: And she's a hundred million years old. and she can't hear anything. Okay. So he's he's got all this significant charges and they're really disturbing 'cause there's a few like real trigger crimes. Frankie: Mm. Judah: Incest is one, I'm gonna say cannibalism is another one. Frankie: Mm-hmm. She has opinions. Judah: Let's start that bit over. Okay. Frankie: Sure. Judah: So Valle, an active duty police officer, was very suddenly arrested out of allegations that he had planned to kidnap and eat over a hundred women. And cannibalism is certainly a taboo that Frankie: It's also just like you can get really sick from it. Judah: I don't think we to to like get into that because there's a really fascinating case Frankie: Yeah. Judah: about ritualistic cannibalism that that resulted in a prion disease. f yeah. Frankie: Yes, prion disease. That's it. Judah: For a tribe I believe in Papua New Guinea. Alright. Frankie: Mm-hmm. Judah: We're not gonna talk about the prion disease element. This guy had not hurt anybody that we know of. Not a single person. And he's in jail. how this kind of came about, and he didn't dispute this. he gets married, he has a young baby, and he starts engaging online on fetish websites. I think it was specifically like darkfetish.net, something that specialized in really chats about taboo fantasies Frankie: Okay. Judah: about cannibalism, like kidnap, torture, cannibalism. And in his fantasies he's talking about even women that he knows, including his own spouse, his own wife. Frankie: So this is a minority report issue. Judah: He's got detailed fantasies, but they're all in the scope of specifically like this fantasy website and he's even talking about these fantasies with similarly minded people in I think there was like twenty-four chats and in twenty-one of them He does specifically say this is a fantasy, you know, it's my own little brain world. but he's sitting in jail facing life imprisonment Frankie: Mm-hmm. Judah: for this chat and then separately for accessing the police database to look at information. Frankie: that's not good. Judah: for some of these women. That's where the computer fraud and abuse act charges come out of. Frankie: That's going a little bit beyond just fantasy. I can see why it's not just thought police. Judah: Yeah. Well, speaking of that, I should cite my sources. how I got interested in this case is a documentary from twenty fifteen that I watched a few years ago when I was thinking about what's spooky. I thought, ooh, cannibals. It is called Thought Crimes, The Case of the Cannibal Cop. I also read United States v. Valle, an article from the Electronic Frontier Foundation, United States v. Gilberto Valle, and an article from the National Constitution Center. Cannibal Cop I'm actually not gonna read the whole thing 'cause it's gonna spoil it, but if you look up Cannibal Cop on the blog, you'll find this article. And so he's facing life imprisonment. Like the big is these like mass of conspiracy charges for the more significant plans, which is why we get 24 chats that are highlighted because they're really specific. They're about known women. And I'm not gonna lie, incredibly disturbing material if you look at the chats themselves. Frankie: Mm-hmm. Judah: Nitty-gritty, detailing kidnapping, kidnapping techniques, torture techniques, and cannibalism. All in there, incredibly disturbing fantasy. And until he goes to trial until the conclusion of his trial, he spends twenty-one months in jail. And a total of seven months in solitary confinement, which is, as we know, like psychological torture. It's one of the worst things you can do. he was discovered and reported by his wife who found on his computer these posts and like called the NYPD, who he also worked for. He finally goes to trial on this case, and the jury convicts him of the conspiracy and the computer crimes Frankie: That tracks. Judah: together. And it this case was sensationalized. It was highly Frankie: Mm-hmm. Judah: publicized. Like it's in the news. It has all the elements. Like, first of all, there is an active duty law enforcement officer, and then you have these salacious. Frankie: Mm-hmm. Judah: detailed cannibalism and kidnapping plans that talk about over a hundred women and women that this guy knew well, including his own wife. Like I said, she left him. He was Frankie: Did she leave him? I yeah. Judah: he was fired by the NYPD. Frankie: if my spouse was talking about eating me, I would probably bounce. Judah: Yeah, I would say that's fair. But there is a huge difference between facing understandable personal consequences and what can the government put you in prison for? Frankie: Mm-hmm. Judah: And like for how long? can you go to prison for life for Thinking about something. Frankie: That is what conspiracy means. Judah: Thinking about something. No, it's not technically what conspiracy means. Frankie: You need the substantial step. Judah: That's an attempt, so there has to be a manifestation that you intend to act out the conspiracy. So it can't just be a thought, it cannot just be a fantasy. And the question that was presented in the most dramatic way possible via like these violent kidnapping, murder, torture, cannibalism fantasies is. Can we imprison someone? For a fantasy life. So we know how the prosecution presented. They said, okay, well, his manifestation that he was intending to commit these crimes is that he did look up a number of these women on the police database. Frankie: Mm-hmm. Judah: And the CFAA also specifically is about hacking. It was not Frankie: Mm-hmm. Judah: about improper use of police resources. And he goes to trial. and the jury finds him guilty. They're like, This is horrifying. Put him away, lock him up, throw away the key. The judge on that lower level court case says, Well, there is nothing so we got a judgment notwithstanding the verdict. And the judge threw out the conspiracy charge. Frankie: Okay. Judah: But said there is enough here on the computer crime. And so he's convicted of the computer crime and sentenced after 21 months of that is a way lesser charge. Way Frankie: Mm-hmm. Judah: lesser charge. Then there is a cross appeal. The state appeals the dismissal of the conspiracy charges, the defense Frankie: Mm-hmm. Judah: appeals. the CFAA count. The Frankie: Conviction. Yep. Judah: CFAA conviction. When that's coming up, this is also where I'm drawing in the Electric Frontier Foundation. They do a lot of important work for basically internet and technological freedom. They wrote an amicus brief in support of Valle and the argument was the CFAA is intended to criminalize hacking which is the circumvention of a technological barrier to access. And all Valle did was violate a police department policy restricting the use of police databases. He did not violate the law. Frankie: Yeah, he just logged into his account and used it improperly. Judah: And did it so he he did not work his way around a barrier to access a database. He used a database that he had access to inappropriately, so he should not be convicted of this hacking crime. And this goes up to the second circuit court of appeals. And the second Circuit Court of Appeals comes back. and says that there's lots of arguments about if you found him guilty of this that it would take away a bunch of rights and it could impact people who were like normally checking Facebook or looking at people on Facebook and here's a good quote from the case. While the government might promise that it would not prosecute an individual for checking Facebook at work We are not at liberty to take prosecutors at their word in such matters. A court should not uphold a highly problematic interpretation of a statute merely because the government promises to use it responsibly. Frankie: Scouts honor. Judah: Scouts honor. So to say, hey, if you have a workplace policy against checking Facebook, that's an inappropriate use of the resource of your workplace resource that you could be convicted under CFAA if we take this similar interpretation to its logical conclusion. And the second circuit not only upheld the lower court's decision to vacate the conspiracy charge. But also vacated his conviction for using the database. There is a dissenting opinion, Justice Chester Straub. This is not a case about government intrusion on one's personal inclinations and fantasies, nor is it a case about governmental punishment of one's thoughts. it is instead a jury's determination of guilt for conspiracy based on definitive conduct. So this is this really sensational case, and ultimately after nearly two years incarcerated, and huge amounts of publicity, this guy has no convictions on his record whatsoever. And I would say like if we're talking like law school hypotheticals, we have played out in front of us. the most dramatic way that you could talk about freedom Frankie: Mm-hmm. Judah: and the ability to fantasize. There is a quote from a Bruce Springsteen song, Johnny Ninety Nine, which is pretty well known in the public Frankie: Mm. Judah: defense community. that talks about if you could kill a man for the thoughts that's in his head, to you know, to shave my head now. and and put me up for execution. But ultimately the court finds and says you have the freedom to have any fantasy that you want and that we cannot criminalize pure fantasy, pure thought, and it upholds that freedom. And it is difficult to say well like when you have something as dramatic and frankly disgusting as the type of fantasy that was going Frankie: Mm-hmm. Mm-hmm. Yep. Judah: on here to argue that that's permissible. But it's like Frankie: Mm-hmm. Judah: it is permissible. And if you take that away, it is a domino effect to taking away ordinary freedoms to have thoughts that other people don't like. And we do not prosecute thought crime and thought Frankie: Right. Judah: crime is not illegal Frankie: Right. Judah: you have the freedom to do it. Frankie: Well and that's the thing, people ask How can you be a public defender? blah blah blah blah blah. It's like, Well, if I don't protect this person who maybe you have a bad taste in your mouth about from the government, then they're just gonna come after you next. Judah: Yes, it's you, it's me, because every single person has thoughts and maybe even fantasies about something that maybe the person next to you finds horrifying and inappropriate. But as long as you are not acting out or taking steps to act out illegal conduct that you think about, you are free to think about whatever you want to think about. Frankie: Yep. Absolutely. Judah: And that is the cannibal cop case. And I picked it, cannibal, ooh, spooky, scary. At the end, the only person who had violence inflicted upon them throughout the course of this case was Gilberto Valle. Frankie: Yep, 'cause that's our air quotes justice system. Judah: that's our air quotes justice system. Yeah. Frankie: That was very interesting and very good ending for Mr. Valle. I have as I did my research it turned into a series of cases, but Judah: Of course it did. Frankie: I explored the answer to can you sue a haunted house if you get injured? Judah: Can you sue a haunted house if well, you cannot waive gross negligence. So if there was gross negligence, as we know in the civil world, even if you signed a waiver, you cannot waive gross negligence. Frankie: Yep. So my Sources are largely just the actual case law. And then there was a Mahoning Matters article called Can You Sue a Haunted House for Being Too Scary by Saundi Rose. Judah: it's like is it being too scary or were you injured? Frankie: Well, you'll see how based on the the facts of the case why that was the question posed. Judah: Let's go A D H D and say have you ever been to a real haunted house? Frankie: I don't do haunted houses, I don't do scary because I have a very exaggerated startle reflex. And I would be one of these plaintiffs. Judah: I don't do scary I do spooky movies, I like spooky or dramatic suspense. I don't like gore. I don't like jump scares. Hate jump scares. I also have an elevated startle reflex. I think that may be one of the diagnostic criteria for one of the conditions that we share. Frankie: PTSD. Judah: PTS I'm thinking more Autism or ADHD, having an elevated starter reflex? Frankie: No, it it PTSD. It's one of the the hallmark characteristics Judah: Okay. Frankie: of PTSD. Judah: have an elevated Star Reflex. Hate it, hate it, hate it. Frankie: Mm-hmm. Judah: But there there are movies like something you can consider like suspense that I love, is Murder on the Orient Express. Frankie: I haven't seen that one. Judah: god, that okay, you have to see the classic. You cannot see the Kenneth Branaugh versions. They are Frankie: I was gonna say, didn't they just redo it? Judah: they are trash. the definitive Murder on the Orient Express is from Okay, yeah. The nineteen seventy four version Frankie: Mm-hmm. Judah: directed by Sidney Lumay, the a Luminary in film, Frankie: Mm-hmm. Judah: and starring Albert Finney Frankie: okay. Judah: Yeah. so that has it's a murder mystery, it takes place in a closed environment. there's twists and turns. I am not gonna spoil it for you because the ending to murder on the Orient Express is one of the best endings in literary history. Please do watch it, there's lots of places to find it for free. So like I enjoy that, but I would rather walk into traffic than watch a movie like Hostel. Frankie: Yeah, absolutely. So we'll start off with the the case that I started off with. Gretna Athletic Boosters Incorporated in Gretna, Louisiana, set up a haunted house at the Mel Ott Playground as a fundraiser for their athletic programming. They built Judah: I'm gonna pause here and say how possibly terrifying could the athletic club's haunted house be? Okay, okay, okay. Frankie: Well l well let me get there. Let me get there. So they built a haunted house out of two by fours and black visqueen, which is like this polyethylene plastic sheeting that's usually used as a moisture barrier, like Tyvek. Judah: Is that what you put down on your floors when you're painting and you don't want to get paint on your floors? Okay. Frankie: Yeah. That or you can use it as a moisture barrier when you're putting siding on houses and stuff. Judah: Okay. Okay. Frankie: so inside of this haunted house there were a number of exhibits or scary little cubbies manned by approximately 18 volunteers. There was also one volunteer stationed at the entrance and at the exit. So one at the entrance and one at the exit. The entrance of the haunted house was built up against the bathroom facilities, which are made out of cinder block, and the wall facing the haunted house of that of those bathroom facilities were also covered in the visqueen. So you know when you're like at a public park and they have those just like brick buildings that have like two doors and two little toilets in them? Yeah. Yes. Judah: Yes, I've pooped in those. Frankie: So the side of the haunted house was the side of the Bathroom facility thing. Judah: Out of a thing that's made out of a toilet and essentially large plastic garbage bags, I'm still not getting the terror, but I'm waiting. I'm waiting. Tell me why you should be terrified. Frankie: so that that that cinder block wall was also covered in the Black Fisken. So on the evening of October twenty-ninth of nineteen eighty-eight, Deborah Mays took her daughter's friend to the haunted house. It was dark both outside and inside the haunted house because it was nighttime. A volunteer working one of the exhibits jumped out and yelled, scaring both Mays and her daughter's friend. They ran in fear, and Mays ran directly into the Visqueen covered cinder block wall, breaking her nose. She required two. Judah: so she s so she turned around and she just bam. Frankie: Yeah. Judah: She just like wily coyotes it straight into the side of a bathroom wall. Frankie: Yep, and she required two surgeries to fix her nose. So of course she sued. The trial court found that Gretna Athletic Boosters had, quote, no duty to protect Mays from her reacting in a bizarre, frightened, and unpredictable ways, because that is the expected response and the reason for going into the haunted house, end quote. Judah: Okay, but counter argument if she's expecting to be able to bust through plastic and there's a scary part right next to the toilets, could you foresee Okay, 'cause the elements of a tour claim for foreseeability Frankie: I'm Judah: is one of them. Frankie: Well, yeah. I have that further down in my notes. Judah: Okay, okay. You you do you I'm interrupting. My medication is worn off. We're recording a little bit later in the evening than we usually do. Frankie: Yes, we are. So the court found that there was enough personnel and good enough space in the rooms for adequate supervision of the patrons, and the court determined that Gretna Athletic Boosters had no liability for Mays' injury. So she appealed, alleging that the court misapplied the doctrine of assumed risk when the court followed its precedent in Bonano v. Continental Casualty Company. Which found that the doctrine of assumed risk prohibits someone from recovering for damages from a haunted house incident. Case number two. On November 2nd, 1968, Mary Bonanno, eighty-four at the time, went to an annual haunted house fundraiser. She went there with her daughter-in-law, granddaughter, and other family members. The haunted house was set up in two vacant houses in New Orleans, decorated with ghosts and goblins, etc., quote, so designed to frighten and startle the patrons, end quote, complete with sound effects. It was set up that people go through one house, go through a graveyard set up between the two houses, and then go into the second house. The last room they encountered was the Devil's Den, where someone dressed as the Devil was brought in suspended by an overhead track. So the kind of like fly him in. It was like super high to me, that's really high production value for a community haunted house. So Ms. Bonnano wound up on the floor, either jostled by the other 25 patrons in the room or from having fell fleeing the devil. Accounts differed. She sued, alleging that failure of the haunted house to control the flow of people amounted to negligence. The trial court dismissed her claims, and the Court of Appeals upheld that dismissal based on the assumption of risk doctrine. They also noted that there were appropriate precautions available vis vis controlling the flow of people and enough space in the rooms. Judah: so that's a different tenure in the case. So I can see why the court in this case could differentiate from the Bonanno case. Frankie: Right. So, that court ultimately ruled, quote, she obviously had knowledge that she could anticipate being confronted by exhibits designed to startle and instill fear. She had to recognize that the very nature of the attraction was to cause patrons to react in bizarre, frightened, and unpredictable ways. That's where that language comes from in the Mays case. It would be inconsistent In this case, for this court to allow plaintiff to recover for damages, which resulted from her being frightened, precisely the effect that the haunted house was calculated to produce. Okay. So that is the case law that the court had in mind when it was deciding Mays. Essentially, that haunted houses are supposed to be scary. It's not up to the haunted house to try and prevent people from acting in these bizarre and unpredictable ways because they react to being scared, because they're going in there to be scared, no liability. So that's the precedent. Judah: Not I'm not gonna fight with that. You kinda know if Frankie: Yeah. Judah: you're going into a haunted house that's not like for children, where it's like, put your hand into this bowl of unpeeled grapes Frankie: Yeah, Yeah. So, now going back to Mays, the Court of Louisiana pointed out that the doctrine of assumed risk is no longer good law, but they are using a comparative negligence standard. and so assumed risk essentially means you knew the risk when you were taking it and you did it anyways. So that creates no liability on the other side because you did the dumb thing. Comparative negligence is weighing each person's negligence against the other and figuring out who is more at fault. You can ultimately decide like percentage-wise in terms of money judgments and things like that. So, quick tort lessons that Judah was trying to get to earlier. Duty plus injury equals liability. So if there's no duty of care, there can be no liability. That duty is based on objectivity. So did the athletics club act unreasonably? vis-a-vis Ms. Mays, or otherwise act in a way that was so outside of the norm as to be dangerous. Just because there's an injury doesn't mean that there's a duty owed or violated. a duty means that you owe some sort of standard of care to the other person. And there's always like that base standard of care when you're inviting people into your house, but as long as you're acting reasonably for the situation, then you're not gonna develop any liability if somebody gets hurt. Judah: Well, let's talk about when somebody would be liable. Okay, so because we this got drilled into us whether or not you're going into torts. So you have duty of care, like to get to a tort claim, it's like a ladder. You to a duty of care. So you have to establish that somebody owes somebody else something. Frankie: Mm-hmm. Judah: You have to have a breach of that duty, right? there has to be causation, which Frankie: Mm-hmm. Judah: means that Something the other party who owed you a duty of care either did or should have done and didn't do actually caused the injury. This is we'll call this like the but-for cause or proximate cause. Frankie: Mm-hmm. Yep. Judah: You have to have experienced actual damages and if you're talking about causation, in that is where we're talking about like could you foresee that like this injury would happen? So if you owe a duty of care to someone and they're inside your business and that Frankie: Mm-hmm. Judah: person gets struck by a meteorite that comes through your roof, you didn't have a duty to have like a meteorite protective roof on your business. Frankie: Right. Judah: You couldn't foresee that. However, if they're inside of your business and a light fixture due to poor maintenance falls on their head and injures them, then they can get money from you. Frankie: Right. And that's why you see like wet floor signs in stores when they've just mopped the floor so that they are doing their due diligence to warn you that the floor may be slippery, so that they are not creating a opening for liability on their end by not warning you and therefore you are I mean, assumption of risk, you know, this Court is saying assumed risk isn't the standard, but if you are going on to it knowing that it is slick and you slip and fall anyways, then you have some negligence on your own part for engaging with that area that is wet. And so it's not on the company whose building you're in. Judah: Can I tell a true story about when I could have sued and I didn't? Frankie: Sure. Judah: Or my mom. So I was a kid if we were at a Dairy Queen after church one Sunday and they had a toilet that had overflown and I was walking to the bathroom, I didn't see that it was slippery and there was no sign, and I slipped and just fell right on my ass. And Frankie: Mm-hmm. Judah: I wasn't hurt, I was just kind of like, gross. And my parents, there's no way they were gonna sue Dairy Queen over me falling on my butt. I just had toilet water. I wasn't hurt. But we got Frankie: Yeah. Judah: multiple free ice cream cakes and a stack of coupons about that Frankie: Yep. Yep. Yep. Judah: big. And my mom's like, I know it's kinda gross, but we have like free ice cream cake and a bunch of coupons to Dairy Queen for free stuff. So good for you. Frankie: Yeah. Yeah, right. So the director of the haunted house can't be expected to eliminate all danger, but rather make sure that their setup is within reasonable expected boundaries of safety. So Mays argues that covering a cinder block wall black visqueen in a darkened room falls outside of those bounds, but the court disagreed. And much like the court In Bonnano, this court said, quote, The very nature of a haunted house is to frighten its patrons. In order to get the proper effect, haunted houses are dark and contain scary and or shocking exhibits. patrons in a Halloween haunted house are expected to be surprised, startled, and scared by the exhibits. But the operator does not have a duty to guard against patrons reacting in bizarre, frightened, and unpredictable ways. Operators are duty bound to protect patrons only from unreasonably dangerous conditions, not from every conceivable danger. And that's going back Judah: Yeah, well at the end of the day she ran into the wall. Frankie: Yeah. And that goes back to Judah's like meteorite example, right? Like any conceivable danger. That would cover a meteorite, but you don't have to do that. You just have to be reasonable. You have to be reasonable in your care of your patrons. So the Court of Appeals agreed with the trial court that the amount of staffing and the size of the rooms were reasonable to assure general safety of the public coming into the haunted house, and that the haunted house was not unreasonably dangerous. So that's case number one. Judah: let's just to change it up where the haunted house would be liable. Somebody's walking through a darkened haunted house. It's spooky. you're paying money to get spooked. And as part of that they have like a rubber axe that springs out from the wall that's supposed to startle you, and that rubber axe springs out and that hit the plaintiff in the nose and broke her nose. Frankie: Mm-hmm. Judah: I would assume that under that fact pattern, that the haunted house would be liable. 'Cause they're the ones that created that there's no way that the person could have protected themselves from that Frankie: Mm-hmm. Judah: axe jumping out from the wall, like if it's going into their path, but just somebody getting freaked out and running I mean face first into a wall. Frankie: Yeah, face first into the wall. another way they'd be liable is if like there was a gopher hole that they knew about and they didn't fill in. and somebody tripped and broke their ankle. Possibly. So Judah: And and and some of these cases that you see that this feels really unreasonable, a lot of times when you see that, it's not the individual that's decided to do that lawsuit. It's their insurance company. So Frankie: Mm. Judah: some of these where it's like, that's an embarrassing, why'd they bring that lawsuit? is like, Well, they didn't. Their insurance brought it. Frankie: Yeah. so one other example, this one is also out of Louisiana. so first we had Bonnano then we had Mays. Bonnano was in the sixties, Mays was from nineteen eighty eight was the original incident date. Fast forward to two thousand two, there was another case in Louisiana called Derman v. Billings. This wasn't a haunted house but rather a haunted corn maze. Gracie Gail Derman sustained an injury in the maze called MaiZe spelt A I capital Z E. Why they did it that way, I don't know. Judah: Like they're trying to play on maze corn is maize and it's a corn maze. Frankie: Yeah, but the capital Z is weird. Anyways, Mrs. Derman accompanied her church's youth group to the MaiZe on October eleventh of two thousand and two. It had been rainy and the ground was muddy. and they like called ahead of time to see if they were still open and they said, Yeah, come on over. The MaiZe was broken up into two phases, with phase two being the scary one. Phase one was just finding your way through the maze. While walking through phase one, a chainsaw was audible in the distance. And as she got to the end of phase two, a Jason impersonator jumped out and held a running chainsaw over his head. There was no physical contact between the Jason impersonator and Mrs. Derman, but she tried to run and fell and broke her ankle. So she sued, claiming that the conditions were unreasonably dangerous due to the rain and the mud. Billings, who's the owner of MaiZe and there was also their insurance company involved in this lawsuit. so MaiZe and the insurance company filed for summary judgment and won because it wasn't unreasonably dangerous, reasoning that Mrs. Derman could have also seen the muddy conditions just as well as the Billings. And we have comparative negligence, and so she can't recover. She appealed and the Court of Appeals affirmed, reasoning that the fact of an accident doesn't create a liability. The court noted that approximately 1,500 patrons went through the MaiZe on the same night as Derman, and over not just that night, but over the entire course of the Halloween season, there was only one other fall incident, and it was somebody who only had one leg and who was uninjured when they fell. So Judah: I just that's another kind of thing is it's muddy, mud is slippery, you can fall on mud, you might want to r Frankie: Or you can get your foot stuck in it. Judah: Yeah. 'cause what I've heard is like if you want to do like the chainsaw scare, they actually take the chain off. And Frankie: They take the chain off of it, yep. So that there's no way anybody can get injured by it. Judah: Yeah. And it's just oooh sound. Frankie: Yeah. the court also noted the precedent that states that when the risk is obvious, the risk is not unreasonable. So all these falling into that same line of like, you go into a haunted house to be scared. And especially in this one, like you could hear the chainsaw running when you were in the not scary part of it. So you knew that probably there was some sort of chainsaw as part of the scary. And, you know, like she assumed the risk. Like they actually called ahead and were like, hey. It's been raining. It's probably muddy. Are you guys still open? And they said yes. So they went in knowing it was muddy. They'd been through the first half of the maze. They knew it was muddy. And they still went into the second half of the maze that they knew was going to be the scary part of the maze. There was all sorts of like bad choices made on her part that led to her getting injured. Judah: And once again it could have been her insurance company suing. I've heard all kinds of you know, like trying to recover damages. she may have decided to sue. I haven't read the case. But if that was you, Frankie, and you had been Frankie: I wouldn't be doing the scary part of the maze if it was me. Judah: If you had been cajoled into the scary part of the maze and you Frankie: There would be fingernail imprints on somebody's arm. Legit, Tony forced me onto a roller coaster at one point. There were fingernail imprints on his forearm. Judah: When I was much younger, I'm gonna say late teens, early twenties, I'd said I don't like scary movies and I don't wanna go and I got cajoled and like talked into going to see Dark Waters. Frankie: know what that is 'cause I don't do scary. Judah: Yeah, I didn't want to see it. With my friend Donnie and I was like, You're not gonna like this. This isn't gonna be fun for you. I think that you think this is going to be funny and it's not going to be funny. And I wound up in his lap, like grabbing his face during the movie. Frankie: Yeah, yeah. So my freshman year of college, one of my besties from youth group, his roommate, convinced me to watch the ring by telling me it wasn't actually that scary. And so we started out watching the movie. Dimitri was on his bed, Nathan was on his bed, and I was in like the bowl chair thing that they had in the middle of the room. And by like twenty minutes in, I was in Dmitri's bed and imprinting my fingernails into his forearm. And about Judah: Yeah. Frankie: a half hour before the end of the movie, I hear Nate squeak from the other bed, Is there still room over there, guys? Judah: It's like and you're like, it could be funny or it could be kinda sexy, they're gonna snuggle up to you. I'm not gonna snuggle up to you. I'm gonna full marmoset you. Frankie: Mm-hmm. Mm-hmm. Yep. Yep. Judah: But I like mystery movies. Like I said, I love I love a mystery movie. No jump scares, figuring things out, maybe it's like eerie. If Frankie: Mm-hmm. Judah: there's jump scares, no. no. No, Frankie: Nope. Nope. Nope. Judah: no jump scares, no gore. I did really great watching The Shining. Yeah, but it there was no jump scares. It was just kind of spooky. It wasn't gory. It was just kind of eerie. Frankie: See the other thing is I have a really active imagination. after watching The Ring, I was too scared to walk back across the quad in the middle of the night. Well, middle of the night it was like eleven. And so I was just like, I'm staying over, guys. I'm not leaving. Judah: Yeah. I I've s I've seen The Ring, that really freaked me out. But other things that like really bother people don't impact me. Frankie: The autism. Judah: it's the autism. And I like so like one of my favorite books is Brom Stoker's Dracula. Frankie: Mm-hmm. Judah: But that's and I love like a gothic, like spooky, ambient Frankie: Yeah. Judah: s you know what I'm saying? But not Frankie: Mm. Mm. Well that wraps up my exploration into can you sue a haunted house if you get so scared that you either break your ankle or smack your face into the wall or trip. I think Judah has our light at the end of the tunnel this week. Judah: Yes, yes, to get us out of the spook. Just to say, the real scary thing is the American justice system. Frankie: for fuck's sake, yes. Judah: That's a true horror story. Frankie: Good lord. Judah: American horror story. Colon, the justice system. Alright, Light at the End of the Tunnel Frankie: So bad. Judah: is supposed to kind of invigorate us to keep on keeping on. So this happened on October twentieth, so very recent. We're recording on October twenty second, but I'd heard this was coming and people were hoping it was gonna get signed. and I might be destroying this tribe's name 'cause I didn't I have only read it. It's spelled E L W H A. I know how to pronounce Klallam because I've been there. So the lower Elwha Klallam Tribe Project Lands Restoration Act that transferred approximately 1,082 acres of federal land in Washington state into a trust for the lower Elwha Klallam tribe. So functionally what happened is and this was if you want to look it up, it's HR two three eight eight and in the Senate it was S one five one three. It moved these federal parcels into the BIA, the Bureau of Indian Affairs, to be Frankie: huh Judah: held in trust for the reservation. And this is also good news because this land was made available partially because of a dam demolition. to restore fish habitat, functional habitat, and hatchery pipeline projects. There's an exception. the tribe cannot use it for gambling. So like they can't establish a reservation on it. But it preserves tribal treaty rights and this land is also going to be aiding in watershed recovery from this dam removal project and Frankie: Nice. Judah: For Pacific salmon and trout habitat efforts. It was really exciting to see land that was stolen and partially covered, like really stolen when this dam was put in and the place was flooded. It was unusable in any Frankie: Mm-hmm. Judah: sense. The dam was removed, the land became functional and usable, you didn't have to swim down to it. representative Emily Randall sponsored it in the House and it was joined in the Senate by both Washington State Senators Maria Cantwell and Patty Murray. And it reached the president and he did sign it. And we have, of course, a long way to go for restoring land rights, but this is Frankie: Mm-hmm. Judah: the latest in a series of land restoration projects and I was just really heartened to see first of all this is pretty close to where we're sitting right now that this happened over a thousand acres, you know, nearing up on eleven hundred acres is a significant Frankie: It's huge. Judah: yeah, piece of property and the fact that this was going along with this habitat and watershed restoration project that we got to see this really being the start of a return in multiple ways to what was taken from the land, first indigenous Frankie: Mm-hmm. Judah: rights and indigenous use and also habitat restoration. So I just really liked that. is it the biggest thing in the entire world? No, but this is a good start. Frankie: Very good start. Awesome. So next week I am taking a complete left turn and I will be talking about the case that decided whether tomato is a fruit or a vegetable. Judah: Ooh. Frankie: Yeah. Judah: Is it a fruit or is it a vegetable? Frankie: Find out next week. Judah: We'll find out next week. I don't know what I'm doing, but I'm just gonna tell you now. I'm gonna pick something historical and weird, which is my favoritist. Frankie: Mm-hmm. Judah: So I'm gonna pick something weird, historical, and just something that today seems super funky, so that's my promise. I'm gonna find something funky. I think I really delivered with the trial of a dead pope. It's Frankie: You really did. I don't know how you're gonna top that. Judah: It's not gonna be as good as that it's tough to get trial of a dead pope good, but it's gonna be good. Frankie: Awesome. So as always, like, subscribe, and share our podcast so we can continue to grow. You can follow us on Facebook, Instagram, Blue Sky, reach out to us via email at dumb defensespodcast at gmail.com. Judah: Have you checked our email this week? Frankie: I did. We got a whole bunch of AI trying to sell us stuff. Judah: we do not support generative AI on this podcast. Frankie: No, it's like yeah, I deleted them. They were dumb. Anyways, Judah, did you want to do your sign off? Judah: yeah shut the fuck up. If Frankie: Yeah, just don't talk to cops. Judah: just don't talk. just don't talk. Don't talk. Shut the fuck up. It's not you know there's a thing shut the fuck up Friday. It's shut the fuck up every day. Frankie: Every day. Judah: Every day shut the fuck up. Frankie: Yep. And we'll see you next week. Bye. Judah: See you next week. Bye bye.